After waiting years for the adjudication of his case without a quorum at the MSPB, a former federal employee requested relief from the United States Court of Appeals for the Federal Circuit. On April 30, 2019, the appeals court granted his motion.

In 2013, a former Nuclear Regulatory Commission employee filed an Individual Right of Action (“IRA”) appeal with the Merit Systems Protection Board (“MSPB”), alleging that his removal and other agency actions were prohibited personnel practices. An MSPB administrative judge dismissed his IRA for lack of jurisdiction. The employee petitioned the full Board for review, and on July 29, 2014, the Board denied the employee’s petition for review and affirmed the administrative judge’s final decision. The employee then appealed the Board’s decision to the United States Court of Appeals for the Federal Circuit. During the litigation of this appeal, the MSPB admitted in its brief that the full Board had “erred in analyzing [the employee’s] 11 alleged personnel actions as protected disclosures.” On September 12, 2016, based on the Board’s concession of error in its reasoning, the appeals court ruled that the Board’s judgment was “no longer final,” and remanded the case back to the Board for further proceedings.

As time passed, the employee inquired with the MSPB as to the status of his appeal. On December 15, 2017, the Acting Clerk of the MSPB responded to his inquiry, and advised the employee that because the Board lacked a quorum, it could not issue any decisions that require a majority vote, including the adjudication of his appeal.

On February 25, 2019, the employee filed a “Motion for Enforcement, Civil Contempt, Sanctions, and Other Equitable Relief” with the appeals court due to the continuing inaction of the Board, requesting that the appeals court stand in place of the MSPB. According to the appeals court, the motion cited the power of the courts, “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”

The appeals court requested a response from the MSPB. The MSPB, without a quorum since January 7, 2017, responded that it had “no internal mechanism or authority to transfer a voted case or a case residing with a Board member to an administrative judge absent direction by the Board members to do so.” The MSPB also stated that it lacked internal authority to transfer the appeals court’s remand from the full Board to a regional office for an administrative judge to review. However, the MSPB stated that it could take such an action “if it were authorized and ordered by [the appeals court] because compliance with such an order would be entirely ministerial.”

The appeals court adopted that suggestion, and instructed the transfer of its remand from the “petition for review level” to an administrative judge “for review, investigation, and resolution of the issues for which this court remanded to the Board” in 2016.

For the reasons stated above, the appeals court granted the employee’s motion.

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